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May Advocate 2017

370 V O L . 7 5 P A R T 3 M A Y 2 0 1 7 THE ADVOCATE dresser based in London. They were joined by the People’s Challenge, a group established by a British expat and backed by a crowdfunding campaign. The importance of the case is reflected in the fact that the UK Supreme Court sat 11 judges rather than the usual five—the most ever assembled to hear a single case. Moreover, the court rendered its 283-paragraph judgment in just under 50 days, despite the fact that the hearing itself spanned four days. The principal issue on appeal was whether the UK’s constitutional arrangements allowed notice under Article 50 to be given by government ministers without prior authorization by an act of Parliament. Ms. Miller had argued that the government required parliamentary approval before it could invoke Article 50, and the High Court agreed.3 The Secretary of State for Exiting the European Union (perhaps an overly optimistic title) appealed to the Supreme Court, where the legal challenge was joined by a reference from Northern Ireland and interventions by Scotland and Wales as to whether consultation or consent of the devolved legislatures was a prerequisite to serving notice under Article 50. By a majority of eight to three, the Supreme Court held that an act of Parliament is required to authorize ministers to give notice of the UK’s decision to withdraw from the EU. The court unanimously concluded that there was no legally enforceable obligation to obtain the agreement of the devolved legislatures before serving notice. PREROGATIVE POWERS There are relatively few decided cases regarding the exercise of prerogative powers, and fewer still that have made it over the preliminary hurdle of justiciability. The British government’s position that ministers could invoke Article 50 without parliamentary authorization was based on its prerogative power over foreign affairs. As “nobody … suggested that this is an inappropriate issue for the courts to determine”, Miller presented a rare opportunity for the court to provide a thorough analysis of the history and scope of prerogative powers.4 The majority traces the history of prerogative powers from 11th-century kings to the present-day separation of powers: Originally, sovereignty was concentrated in the Crown, subject to limitations which were ill-defined and which changed with practical exigencies. Accordingly, the Crown largely exercised all the powers of the state (although it appears that even in the 11th century the King rarely attended meetings of his Council, albeit that its membership was at his discretion). However, over the centuries, those prerogative powers, collectively known as the Royal prerogative, were progressively reduced as Parliamentary democracy and the rule of law developed. By the end of


May Advocate 2017
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